Masumur Rahman @ Masum @ Ahmed Vs. The State, 2 LNJ (2013) 198

Case No: Death Reference No. 72 of 2006

Judge: Moyeenul Islam Chowdhury,

Court: High Court Division,,

Advocate: Mr. Md. Khurshedul Alam,Mr. Syed Mizanur Rahman,Mr. Junayed Ahmed Chowdhury ,,

Citation: 2 LNJ (2013) 198

Case Year: 2013

Appellant: Masumur Rahman @ Masum @ Ahmed

Respondent: The State

Subject: Confessional Statement, Commutation/Reduction of Sentence, Law of Evidence,

Delivery Date: 2013-01-10

HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Moyeenul Islam Chowdhury, J.
And
Md. Shawkat Hossain, J.

Judgment
10.01.2013
 
Masumur Rahman @ Masum @ Ahmed
. . . Condemned-appellant.
-Versus-
The State          ...Respondent
-And-
Amzad Ali @ Mohammad Hossain @ Babu
. . . Condemned-appellant.
-Versus-
The State        . . .Respondent
And
The State            . . .Petitioner
-Versus-
Masumur Rahman @ Masum @ Ahmed and others
. . . Condemned-prisoners
 
 
Evidence Act ( I of 1872)
Sections 137, 145 and 157.
On a critical analysis of the ocular evidence of the star prosecution witnesses, we do not find any omissions, inconsistencies or contradictions on any material aspect concerning the occurrence between their examination-in-chief and cross-examination. This being the panorama, we must say that their rock-like evidence puts the prosecution case on a definite foundation and to discre-dit or to dislodge them, the reasonable doubt that must be  created in our mind must be based on the evidence on record itself and not on mere inferences, surmises, speculations and conjectures. . . . (162)
 
Code of Criminal Procedure (V of 1898)
Section 164(3)
Evidence Act (I of 1872)
Section 24
It transpires from the confessional statement that the learned confession recording Magistrate meticulously complied with all the mandatory provisions of Section 164(3) of the Code of Criminal Procedure. It also appears from the confessional statement that he did not notice any marks of injury on the person of Masum. Moreover, no suggestion was put either to the P.W. 17 Md. Abul Hossain or to the P.W. 46 Inspector Belal Uddin Chowhdury (Investigating Officer) in their cross-examination on the side of the defence that the confessional statement is a product of police torture or oppression or maltreatment. Over and above, it is the admitted position that the accused Masum did not file any application in the Court for retraction of his confessi-onal statement at any point of time. It does not also appear from the testimony of the P.W. 17 Mr. Md. Abul Hossain that Masum complained of any police torture or oppression to him prior to recording of his confession. On top of that, the learned Magistrate appended a certificate to the confessional statement that it appeared to him that the accused Masum made the confession voluntarily and spontaneously. Against this backdrop, we have no option but to hold that the confessional statement of the condemned-appellant Masum is voluntary. Broadly speaking, the judicial confession of the condemned-appellant Masum stands corroborated by the evidence of the eye-witnesses to the occurrence. In other words, the judicial confession of Masum has been corroborated by the ocular evidence on record in material particulars. This being the position, we feel no hesitation in holding that the confessional statement of Masum is true as well. …(176 – 177)
 
Explosive Substances Act (VI of 1908)
Section 3
It is crystal clear that the accused Masum unlawfully or maliciously caused by an explosive substance an explosion of a nature likely to endanger life or to cause serious injury to person or property and because of the bomb explosion, many people were injured and one Mozibul Haque sustained a grievous splinter injury on his person resulting in his death. This being the position, it leaves no room for doubt that the accused Masum committed the offence punishable under Section 3 of the Explosive Substances Act.…(182)
 
Special Powers Act (XIV of 1974)
Section 27
Code of Criminal Procedure (V of 1898)
Section 537
In the instant case, it is undisputed that no cognizance was taken of the offence against the accused Amzad by the learned Special Tribunal Judge under Section 27 of the Special Powers Act. In the cited decision, the non-taking of cognizance of the offence against the offender, amongst others, was one of the reasons for reversal of his conviction.

Unless cognizance is taken of the offence against him, his subsequent trial, if any, can not be sustainable in law inasmuch as the learned Tribunal Judge did not prima facie hold that there was commission of any offence by him. In such a situation, the trial of the accused shall stand vitiated.

In the present case, the non-taking of cognizance of the offence against the accused Amzad by the concerned Tribunal Judge is admitted. Such being the state of affairs, the non-taking of cognizance of the offence against the accused Amzad on the basis of the supplementary charge-sheet by the concerned Tribunal Judge has vitiated the trial of the case insofar as it relates to him. This illegality is not curable by Section 537 of the Code of Criminal Procedure. So we can not maintain the order of conviction and sentence passed against the accused Amzad. Consequently, the accused Amzad is entitled to acquittal ….(186 – 188)
 
Code of Criminal Procedure (V of 1898)
Section 376
The sentence should commensurate with the gravity of the offence. It goes without saying that the criminal act of the condemned-appellant Masum is fiendish, diabolical, heinous and shocking to our conscience. In fact, we do not find any mitigating or extenuating circumstance of a compelling nature for the purpose of commutation of his death sentence; rather all the circumstances are aggravating. In such a landscape, we should not hesitate to use the Sword of Justice with the utmost severity, to the full and to the end. As it is not only a crime against a particular individual but also a crime against the judicial system as a whole as is evident from the confessional statement of Masum and as rightly pointed out by the learned Deputy Attorney-General, the extreme penalty of death, to our mind, will be an appropriate sentence for the commis-sion of the offence by the accused Masum.

It transpires from the impugned judgment that the accused Masum was also awarded a fine of Tk. 1,00,000/- along with the death sentence. It should be borne in mind that imposition of fine on a death sentence awardee is improper or inapposite, though not illegal. So the sentence of fine imposed upon him is set aside.     …(200 – 201)
 
Explosive Substances Act (VI of 1908)
Section 4(b)
The other order of conviction and sentence recorded against the condemned-prisoner Masum under Section 4(b) of the Explosive Substances Act is, no doubt, a superfluity and that being so, the same is knocked down.…(202)

State Vs. Jahangir Mallick, 15 BLC 67; State Vs. Abdul Karim alias Ganesh and others, 8 BLC 264; State Vs. Md. Shahjahan alias Babu, 7 BLC 602; State Vs. Yeasin Khan Polash and 4 others, 12 BLC 631; State Vs. Saidul and others, 13 BLC 739; State Vs. Silbostar Roy alias Tito alias Noorjjaman, 13 BLC 287 State Vs. Md. Monir Mridha and others, 14 BLC 532; State Vs. Anowar Hossain Pinto alias Anowar Hossain and anohter, 61 DLR (AD) 108 and State Vs. Md. Shamim alias Shamim Sikder and others, 53 DLR 439; Abdul Khaleque Mir Vs. State, 2 BLT (AD) 173; Islamuddin (Md) @ Din Islam Vs. State, 13 BLC (AD) 81; Habibur Rahman alias Habib Vs. State, 8 BLC 210; Abul Hossain and others Vs. State, 13 BLD 311; Nurul Haque and another Vs. State, 20 DLR 780; Ali Asgar and another Vs. State, 1986 BLD 436; State Vs. Punardhar Joydhar alias Kudu and Shefali, 31 DLR 312; Hazrat Ali and another Vs. State, 1990 BLD 38; Bakul Chandra Sarkar Vs. State, 45 DLR 260; The Crown Vs. Pirdhan Rautamall & Co. represented by Matilal Mulgulia, 2 DLR 304; Abul Khair Vs. State, 44 DLR (AD) 225; State Vs. Rokeya Begum alias Rokaya Begum and another, 13 BLT 377; Abdul Khaleque Mir Vs. State, 2 BLT (AD) 172; Chowla Vs. State of Haryana, AIR 1974 (SC) 1039 and Madan Gopal Kakkad Vs. Naval Dubey, 3 SCC (1992) 204 ref.
 
Mr. Syed Mizanur Rahman with
Mr. Md. Rezaul Islam, Advocates
…. For the condemned-appellant in Criminal Appeal No. 902 of 2007.

Mr. Junayed Ahmed Chowdhury with
Mr. Md. Anisur Rahman Hatem,
Mrs. Sajeda Farisa Kabir and
Mr. Romel Chowdhury, Advocates
.... For the condemned-appellnt in Criminal Appeal No. 782 of 2012.

Mr. Md. Khurshedul Alam, DAG with
Mr. Delowar Hossain Somadder, AAG and 
Mrs. Mahmuda Parveen, AAG
....For the State in Criminal Appeal No. 902 of 2007, Criminal Appeal No. 7820 of 2012 and Death Reference No. 72 of 2006.
 
Criminal Appeal No. 902 of 2007 With Criminal Appeal No. 7820 of 2012 and Death Reference No. 72 of 2006.

Judgment on

Moyeenul Islam Chowdhury, J:
 
The Criminal Appeal No. 902 of 2007 and the Criminal Appeal No. 7820 of 2012, at the instance of the condemned-prisoners, are directed against the judgment and order of conviction and sentence dated 15.08.2006 passed by the Special Tribunal No. 01, Lakshmipur in Special Tribunal Case No. 19 of 2005 arising out of G. R. Case No. 501 of 2005 corresponding to Lakshmipur Police Station Case No. 01 dated 03.10.2005. By the impugned judgment and order, the Special Tribunal No. 01 convicted the accused-appellant Masumur Rahman @ Masum @ Ahmed under Section 3 of the Explosive Substances Act, 1908  and sentenced him thereunder to death and to pay a fine of Tk. 1,00,000/- and also convicted him under Section 4(b) of the said Act and sentenced him thereunder to suffer rigorous imprisonment for 20 years and further convicted  the accused-appellant Amzad Ali @ Mohammad Hossain @ Babu under Sections 3/6 of the said Act and sentenced him thereunder to death and to pay a fine of Tk. 1,00,000/- and also convicted him under Sections 4(b)/6 of the Act and sentenced him thereunder to suffer rigorous imprisonment for 20 years.
 
The Special Tribunal No. 1, Lakshmipur also made a Reference to the High Court Division under Sub-section (2) of Section 30 of the Special Powers Act, 1974 for confirmation of the death sentence imposed upon them.
 
Both the appeals and the Death Reference have been heard together and are disposed of by this consolidated judgment.
 
The prosecution version of the case, in short, is as follows:
         On 03.10.2005, Mr. M. A. Sufian, Joint District Judge, 1st Court, Lakshmipur was hearing cases in open Court and the Court- room was crammed with Advocates, clerks, witnesses, Court support- staff and litigant people. Anyway, at one stage of the Court proceedings, Mr. M. A. Sufian, the Presiding Judge of the Court, noticed a tall young man with a yellow shirt on having a DLR-like book in his hand sitting on a chair amongst the Advocates. As time rolled by, at about 12:00 noon, Mr. M. A. Sufian further noticed that the said young man with the DLR-like book in his hand stood up from the chair, advanced one or two steps forward towards the rostrum of the Court and in the twinkling of an eye, he hurled  the DLR-like book aiming at Mr. M.A. Sufian. The DLR-like book missed the target, hit the table on the rostrum and a bomb concealed in the DLR-like book exploded with a bang scattering splinters all around and injuring many people including the Presiding Judge Mr. M.A. Sufian and damaging the furniture of the Court-room. One Mozibul Haque, a defendant of Title Suit No. 793 of 1981, sustained grievous injuries on his person resulting in ejaculation of his brain-matter as a result of the detonation of the bomb. Eventually Mozibul Haque succumbed to his bomb injuries.  However, the man who hurled the bomb came out of the Court-room in order to make good his escape. The police personnel and people chased him and succeeded in catching hold of him in front of the building of Lakshmipur District Bar Association. On being apprehe-nded, he disclosed his name as Masumur Rahman @ Masum @ Ahmed. Professedly, he is a member of the suicide squad of the militant outfit Jamayatul Muzahedin Bangladesh (JMB). He was assigned with the mission of killing the Judge (Mr. M.A. Sufian) as a part of their blue print to establish Islamic Rule in Bangladesh.  Be that as it may, while the accused Masum was fleeing away from the Court-room, another bomb exploded on the verandah in order to facilitate his escape out of the clutches of the people and police personnel. At the directive  of the  condemned-prisoner Ataur Rahman @ Sunny (since executed),  the condemned-prisoner Amzad Ali @ Moham-mad Hossain @ Babu supplied the bomb to the condemned-prisoner Masumur Rahman @ Masum @ Ahmed  with a view to  killing the Judge concerned by exploding the same so as to fulfill their mission. However, Mr. Md. Bazlur Rahman, Nazir of Lakshmipur Judges-hip, lodged an ejahar with Lakshmipur Police Station, Lakshmipur narrating the occurrence.
 
The Investigating Officers of the case are Sub-Inspector Md. Abdus Salam (P.W. 45) and Inspector Belal Uddin Chowdhury (P.W. 46). They investigated the case by visiting the place of occurrence. During investigation, a sketch-map of the place of occurrence along with a separate index was prepared and witnesses were examined and their statements were recorded under Section 161 of the Code of Criminal Procedure. Besides, all the condemned-prisoners made self-inculpatory confessional statements and necessary alamats were seized as per seizure-lists and a copy of the autopsy-report of the deceased Mozibul Haque was obtained. Having found a prima facie case, the second Investigating Officer, that is to say, Inspector Belal Uddin Chowdhury (P.W. 46) submitted charge-sheet no. 221 dated 20.10.2005 against the condemned-prisoner Masumur Rahman under Sections 3/4 of the Explosive Substances Act, 1908. Subsequently, the police submitted the relevant supplementary charge-sheet against the remaining two condemned-prisoners, namely, Amzad Ali and Ataur Rahman.
 
At the commencement of the trial of the case, the learned trial Judge charged the condemned-prisoner Masumur Rahman under Sections 3/4  of the Explosive Substances Act, 1908 and  the other two condemned-prisoners, namely, Amzad Ali and Ataur Rahman  under Sections 3/4/6 of the Explosive Substances Act, 1908. The charge was read over and explained to them in the dock; but they pleaded not guilty thereto and claimed to be tried as per law.
 
The defence version of the case, as it appears from the trend of cross-examination of the prosecution witnesses and the statements made by the condemned-prisoners Masumur Rahman and Amzad Ali  at the time of their examination under Section 342 of the Code of Criminal Procedure, is that they are innocent and have been falsely implicated in the case and their alleged confessional statements are products of police torture, oppression and maltreatment.
 
After hearing both the prosecution and the defence and on an appraisal of the evidence and materials on record and having regard to the attending circumstances of the case, the Tribunal below came to the finding that the prosecution brought the charge home against the condemned-prisoners and accordingly, it convicted and sentenced them by the impugned judgment and order as aforesaid.
 
Being aggrieved at and dissatisfied with the impugned judgment and order, Masumur Rahman and Amzad Ali have preferred the instant appeals. As already observed, the learned trial Judge has also made a statutory reference to the High Court Division for confirmation of the death sentence imposed upon them.
 
At this stage, it may be pointed out that the condemned-prisoner Ataur Rahman was executed on 29.03.2007 in connection with Sessions Case No. 28 of 2006 arising out of Jhalakathi G. R. Case No.  253 of 2005 as is apparent from the order dated 10.06.2012 recorded by this Court. Against this backdrop, the Death Reference so far as it relates to the condemned-prisoner Ataur Rahman has become infructuous as a matter of course.
 
The only point for determination in the appeals and the Death Reference is whether the impugned judgment and order dated 15.08.2006 is sustainable in law or not?
 
Mr. Syed Mizanur Rahman, learned Advocate appearing on behalf of the condemned-appellant Masum, submits that his alleged self-inculpatory confessional statement dated 13.10.2005 (Exhibit-15)  is a product of police torture and oppression, but the Tribunal failed to properly appreciate this dimension of the case resulting in a miscarriage of justice.
 
Mr. Syed Mizanur Rahman also submits that since the accused Masum has been convicted under Section 302 of the Penal Code and sentenced thereunder to death, his conviction and sentence under Section 3 of the Explosive Substances Act arising out of the self-same transaction is hit by Section 26 of the General Clauses Act, 1897 and that being so, there is no scope for his prosecution under Section 3 of the Explosive Substances Act; but the learned Tribunal Judge failed to consider this aspect of the case resulting in grave prejudice to the accused Masum.
 
Mr. Syed Mizanur Rahman next submits that virtually  he has nothing to say about the ocular evidence of the prosecution witnesses concerned;  but he makes a prayer  to this Court to  commute  the death sentence of Masum to imprisonment for life on the ground of his tender age  and long pendency of the Death Reference in the High Court Division in view of the decisions in the cases of The State -Vs- Jahangir Mallik, 15 BLC (HCD) 67; The State -Vs- Abdul Karim alias Gonesh and others, 8 BLC (HCD) 264; The State -Vs- Md. Shahjahan alias Babu,  7 BLC (HCD) 602; The State -Vs- Yeasin Khan Palash and 4 others, 12 BLC (HCD) 631;The State -Vs- Saidul and others, 13 BLC (HCD) 739; The State -Vs- Silbestar Roy alias Tito alias Noorzzaman, 13 BLC (HCD) 287;The State -Vs- Md. Monir Mridha and others, 14 BLC (HCD) 532; The State -Vs- Anowar  Hossain Pinto alias Anowar Hossain and another, 61 DLR (AD) 108 and The State -Vs- Md. Shamim alias Shamim Sikder and others, 53 DLR(HCD) 439.
 
Mr. Junayed Ahmed Chowdhury, learned Advocate appearing on behalf of Advocate Mr. Md. Anisur Rahman Hatem for the condemned-appellant Amzad Ali, submits that there is nothing on record to show that cognizance of the offence was taken against Amzad Ali by the concerned Special Tribunal Judge under Section 27 of the Special Powers Act on the basis of the supplementary charge-sheet no. 86 dated 14.05.2006 and as no cognizance was taken against Amzad, the entire trial as against him stands vitiated.
 
Mr. Junayed Ahmed Chowdhury further submits that the non-taking of cognizance against Amzad is not curable by Section 537 of the Code of Criminal Procedure and in this view of the matter, the learned trial Judge erred in law in convicting and sentencing the condemned-appellant Amzad.
 
In support of the above submission, Mr. Junayed Ahmed Chowdhury relies upon the decision in the case of Abdullah Shah and others -Vs- The State reported in PLD 1962 (WP) Karachi 633 (paragraph 4).
 
On the other hand, Mr. Md. Khurshedul Alam, learned Deputy Attorney-General appearing on behalf of the State-respondent and in support of the Death Reference, submits that the evidence of the eye-witnesses, namely, the P.W. 1 Md. Bazlur Rahman, P.W. 3 Advocate Md. Nur Nabi, P.W. 5 Md. Shafiq Ullah (Bench Assistant),  P.W. 6  Advocate Azgar Hossain Mahmud,  P.W. 7 Advocate Saibal Kanti Saha, P.W. 10 Advocate Zahidul Islam,  P.W. 11 Advocate Ratan Lal Bhowmik,  P.W. 12  Advocate Makhan Lal Saha,  P.W. 13  Shahid Ali Rarri (defendant no. 21 of Title Suit No.793 of 1981),  P.W. 15  Delwar Hossain Patwary,  P.W. 16 Idris Ali,  P.W. 23  Md. Monzil Hossain (Constable on duty), P.W. 26  Advocate Md. Shahid Hossain, P.W. 28  Advocate Tasaddek Uddin Ahmed Chowdhury, P.W. 30  Peon Nur Nabi,  P.W. 31  Mr. M. A. Sufian (Presiding Judge of the Court),  P.W. 33 Sub-Inspector Parimal Chandra Das,  P.W. 39 Constable  No. 598 Md. Alamgir Hossain,  P.W. 40  Md. Anowar Hossain and  P.W. 44 Constable No. 134 Md. Abdul Alim coupled with the medical evidence on record  have proved the prosecution version of the case to the hilt  and  viewed from this standpoint, it is crystal clear that the learned trial Judge rightly convicted and sentenced the condemned-appellant Masum.
 
Mr. Md. Khurshedul Alam next submits that the offences punishable under Section 302 of the Penal Code and under Section 3 of the Explosive Substances Act are distinct and separate offences and in such view of the matter, the provisions of Section 26 of the General Clauses Act can not be invoked.
 
Mr. Md. Khurshedul Alam also submits that the self-inculpatory confessional statements of Masum and Amzad are not the products of police torture or oppression or maltreatment; rather they made the confessions spontaneously under Section 164 of the Code of Criminal Procedure and the confessions having been found to be true and voluntary, the trial Court rightly relied upon them in conjunction with the ocular evidence on record.
 
Mr. Md. Khurshedul Alam, however, finds it difficult to assail the submission of Mr. Junayed Ahmed Chowdhury that the trial of the case so far as it relates to the condemned-prisoner Amzad stands vitiated for not taking cognizance of the offence on the basis of the supplementary charge-sheet no. 86 dated 14.05.2006; but he says that this was an inadvertent mistake committed by the learned Tribunal Judge.
 
Mr. Md. Khurshedul Alam next submits that the offence committed by the condemned-prisoner Masum is very heinous and brutal and it was perpetrated not against any particular individual, but against the State, social structure and the Judiciary and in that view of the matter, there is no scope for commutation of the death sentence of Masum to life-term imprisonment. In this regard, Mr. Md. Khurshedul Alam draws our attention to the decisions in the cases of Abdul Khaleque Mir -Vs- .The State, 2 BLT (AD) 172 and Islamuddin (Md) @ Din Islam -Vs- .The State, 13 BLC (AD) 81.
 
We have heard the submissions of the learned Advocates Mr. Syed Mizanur Rahman and Mr. Junayed Ahmed Chowdhury and the counter-submissions of the learned Deputy Attorney-General Mr. Md. Khurshedul Alam.
 
With a view to arriving at a correct decision in the appeals as well as in the Death Reference, we are to advert to and scrutinize the relevant evidence and attending circumstances by way of juxtaposing both the prosecution and the defence versions of the case.  
 
At the trial, the prosecution has examined 46 (forty-six) witnesses in all on its side. But the defence has examined none.
 
Anyway, the informant Md. Bazlur Rahman has examined himself as P.W. 1 in the case. He deposes that he has been posted as Nazir of Lakshmipur Judgeship, Lakshimpur and on 03.10.2005 at 12:00 noon, Mr. M.A. Sufian, Presiding Judge of the 1st Court of  Joint District Judge, Lakshmipur along with his Bench Assistant Md. Shafiq Ullah and others was injured in bomb explosion at the time of Court proceedings and when the bomb-thrower started running away from the place of occurrence, the police personnel and people apprehended him and one of the injured persons was declared  dead when he was taken to Lakshmipur Sadar Hospital for treatment.
 
The P.W. 1 Md. Bazlur Rahman further deposes that he himself saw the young man throwing the bomb and the name of the apprehended man is Masum.
 
The P.W. 1 Md. Bazlur Rahman next deposes that at the relevant time, he was present at the Court-room in connection with a case and he lodged an ejahar with the Officer-in-Charge of Lakshmipur Police Station (Exhibit-1).
 
The P.W. 1 Md. Bazlur Rahman identifies the accused Masum in the dock.
 
In his cross-examination, the P.W. 1 Md. Bazlur Rahman denies a defence suggestion that he was not present at the ejlash at the time of throwing of the bomb.
 
The P.W. 2 is Md. Shahjahan Miah. He testifies that on 03.10.2005, he was on duty as Officer-in-Charge of Lakshmipur Police Station and on that day at about 17:05 hours, he registered Lakshmipur Police Station Case No. 01 dated 03.10.2005 on the basis of a written ejahar from the informant and at the time of lodgment of the ejahar, the accused Masum was handed over to the Police Station.
 
In his cross-examination, the P.W. 2 Md. Shahjahan Miah states that he received the news of bomb explosion at the place of occurrence through wireless and thereafter he rushed there, sent the injured persons to the hospital, cordoned off the place of occurrence and found the accused Masum in apprehended condition.
 
The P.W. 3 is Advocate Md. Nur Nabi. He states in his evidence  that he is an ex-President of Lakshmipur District Bar Association and on 03.10.2005  a little before 12:00 noon, he was present at the ejlash of the 1st Court of Joint District Judge, Lakshmipur and was engaged  in hearing a petition in connection with Title Suit No. 793 of 1981 and the Presiding Judge Mr. M.A. Sufian was hearing  the petition  and at that point of time, the learned GP   Saibal Kanti Saha, Advocate Azgar Hossain Mahmud, Advocate Makhan Lal Saha along with other Advocates, clerks and clients were present at the ejlash.
 
The  P.W. 3 Advocate Md. Nur Nabi also states in his evidence that when he was making his submission from the front row, a DLR-like book was thrown aiming at the Joint District Judge from behind and  the Joint District Judge tilted as a result  of which the  DLR- like book containing a  bomb inside hit the paper-tray  on the table of the Judge, fell down  on the dais beside the Judicial Chair  and  exploded with a bang  and he (P.W.3) stood motionless in a state of bewilderment for a few seconds at the suddenness of the occurrence.
 
The P.W. 3 Advocate Md. Nur Nabi next states in his evidence that one of the clients was seriously injured in consequence of the explosion and the doctor declared him dead when he was taken to the hospital and the Joint District Judge along with his Bench Assistant and others was also injured and after a while, he (P.W. 3) heard the sound of another explosion on the verandah of the Court and at this, people started running helter-skelter.
 
The P.W. 3 Advocate Md. Nur Nabi next states in his evidence that the Joint District Judge (Mr. M.A. Sufian) got down from the ejlash and assisted the police and the people in catching hold of the accused Masum(bomb-thrower).
 
In his cross-examination, the P.W. 3 Advocate Md. Nur Nabi states:
“বইটি নিক্ষিপ্ত অবসহায় আমি দেখি। ঐ  সময় পেছন থেকে নিক্ষেপ করায় আমি নিক্ষেপকারীকে দেখতে পারি নাই। দেখা সম্ভব নয়। তবে জজ সাহেব দেখেছিলেন।”
 
The P.W. 4 is Advocate H.M. Tarek Uddin Mahmud Chowdhury. He claims in his evidence that he is an ex-President of Lakshmipur District Bar Association and on 03.10.2005, he was present at the ejlash of the 1st Court of Joint District Judge of Lakshmipur and was the engaged Advocate on behalf of the plaintiffs and Advocate Makhan Lal Saha was the engaged Advocate on behalf of the defendants of Title Suit No. 793 of 1981 and the person who succumbed to bomb injuries was a defendant of that suit.
 
The P.W. 4 Advocate H.M. Tarek Uddin Mahmud Chowdhury also claims  in his evidence when Advocate Md. Nur Nabi was moving his petition, he (P.W. 4) went out of the ejlash of the 1st Court of Joint District Judge for some time and while he was on his way to the ejlash of the 2nd  Court of Joint District Judge,  he heard the sound of explosion of a bomb and while he was proceeding towards the Bar Library, the police and  people  apprehended  a person  and the Joint District Judge Mr. M.A. Sufian identified him.
 
In his cross-examination, the P.W. 4 Advocate H.M. Tarek Uddin Mahmud Chowdhury denies a defence suggestion that the accused Masum was apprehended on mere suspicion.
 
The P.W. 5 is Md. Shafiq Ullah.  He discloses  in his evidence that he is the Bench Assistant of the 1st Court of Joint District Judge of Lakshmipur and on 03.10.2005, he was seated in the  ejlash  as such and when the Joint District Judge Abu Sufian was  hearing a petition, a DLR-like book containing a bomb inside was thrown aiming at the Joint District Judge from behind and the book hit the table on the rostrum as a result of which it exploded and he (P.W. 5)  and Sufian Shaheb were injured and one of the litigants succumbed  to bomb injuries and the ejlash, records and furniture were also damaged  and he along with the Joint District Judge and others succeeded in catching hold of the bomb-thrower and  the bomb-thrower disclosed his name as Masum. 
 
The P.W. 5 Md. Shafiq Ullah also discloses in his evidence that immediately after the occurrence, the police came to the place of occurrence, cordoned off the area, seized a portion of the thrown book (wherein the bomb was concealed), a broken portion of a light, a narrow iron-rod, broken pieces of  table glass, a plastic basket, a pen- stand, a steel  book-shelf, sand, cement, broken pieces of plaster, a pair of blood-stained sandals and other articles as per seizure-list  (Exhibit-3)  and he signed it as a witness.
 
The P.W. 5 Md. Shafiq Ullah next discloses in his evidence  that on that  day at 12:50 P.M., the police seized a hard diary cover, some pages of the diary containing smell of gun powder,  one  battery and other articles as per seizure-list (Exhibit-4) and  he signed the same as a witness.
 
The P.W. 5 Md. Shafiq Ullah also discloses in his evidence that they along with the Joint District Judge were treated at Lakshmipur Sadar Hospital.
 
The P.W. 5 Md. Shafiq Ullah  next discloses  in his evidence that on 03.10.2005 at 14:05 hours, the police seized one shirt, a pair of sandals and a wrist-watch from the courtyard of Lakshmipur Judgeship as per seizure-list (Exhibit-5) and he signed it as a witness.
 
The P.W. 5 Md. Shafiq Ullah also discloses in his evidence that the accused Masum wore a shirt and while he was fleeing away, he took it off and threw it away lest he should be identified and the wrist-watch and the pair of sandals belonged to Masum and he exploded the bomb by looking at the wrist-watch.
 
The P.W. 5 Md. Shafiq Ullah identifies the accused Masum in the dock.
 
In his cross-examination, the P.W. 5 Md. Shafiq Ullah denies a defence suggestion that the accused Masum was apprehended on mere suspicion.
 
The P.W. 6 is Advocate Azgar Hossain Mahmud. He gives out in his evidence that on 03.10.2005, he was present at the 1st Court of Joint District Judge, Lakshmipur and at about 12:00 noon, the accused Masum hurled a DLR-like book aiming at the Joint District Judge M.A. Sufian and at that time, Masum wore a yellow  full-shirt and the DLR-like book hit the table, fell down on the rostrum and exploded with a bang and Mr. M.A. Sufian narrowly escaped death, but Mr. M.A. Sufian, Bench Assistant, Advocates and litigant people were injured as a result of bomb explosion and one of the litigants  succumbed to bomb injuries.
 
The P.W. 6 Advocate Azgar Hossain Mahmud also gives out in his evidence that in consequence of bomb explosion, records  and furniture were damaged  and Advocate  Md. Nur Nabi, Advocate Tarek Uddin Mahmud Chowdhury, Advocate Ratan Lal Bhowmik, Advocate Makhan Lal Saha and many others were present at the ejlash and some litigants were also present there at that time and immediately after the first explosion in the Court-room, another bomb was exploded on the verandah and they (P.W. 6 and others) came out of the ejlash and saw the bomb-thrower running away  and while he was  running away,  he took  off his shirt and threw it away and the police personnel and people apprehended him in front of the Bar Association Building  and the apprehended person disclosed his name as Masum.
 
The P.W. 6 Advocate Azgar Hossain Mahmud identifies the accused Masum in the dock.
 
In his cross-examination, the P.W. 6 Advocate Azgar Hossain Mahmud states that the distance between the ejlash and the place where Masum was hunted down is about 150 cubits.
 
The P.W. 7 is Advocate Saibal Kanti Saha.  He asserts in his evidence that on 03.10.2005, he was present at the concerned ejlash and on that day, he was the engaged Advocate on behalf of the defendants of Title Suit No. 793 of 1981 and at about 12:00 noon, a petition was being heard and at that point of time, a person threw away a DLR-like book aiming at the Judge and the book hit the table, fell down on the dais and exploded with a bang.
 
The P.W. 7 Advocate Saibal Kanti Saha next asserts in his evidence:

“বোমা নিক্ষেপকারীকে বই বোমা নিক্ষেপ করতে আমি দেখেছি। বোমার আঘাতে আসবাবপত্রসহ এজলাশ কক্ষ ক্ষতিগ্রসহ হয়। বোমার আঘাতে আমি নিজে আহত হই। আমার মুখ ও পায়ে আঘাত পাই।”
 
The  P.W. 7 Advocate Saibal Kanti Saha  also  asserts in his evidence that the Joint District Judge Sufian Shaheb, Bench Assistant and some litigant people were also injured during bomb explosion and the bomb-thrower was aged about 20/21  years  and he ( P.W. 7) saw the bomb-thrower running away from the ejlash and after a while, another bomb was exploded on the verandah and ultimately the  police personnel and people caught hold of him in front of the building of the Bar Association; but before his apprehension, the bomb-thrower took  off his shirt, threw it away and the police seized the shirt and one Mozibul Haque succumbed to  bomb injuries.
 
The P.W. 7 Advocate Saibal Kanti Saha identifies the bomb- thrower (Masum) in the dock.
 
In his cross-examination, the P.W. 7 Advocate Saibal Kanti Saha denies a defence suggestion that the accused Masum did not throw away the bomb.
 
The P.W. 8 is Dr. Md. Nizam Uddin. He states in his evidence that on 03.10.2005, he was on duty as Resident Medical Officer (RMO) at Lakshmipur Sadar Hospital, Lakshmipur and on that day, he examined the injured Mozibul Haque and found the following injury on his person:
“One penetrating injury on the left eye ē loss of eyeball ē coming out of brain matter through the injury caused by splinter due to bomb blast.
Nature of injury- Grievous.”
 
The P.W. 8 Dr Md. Nizam Uddin also states in his evidence that on 03.10.2005, he also examined the injured Constable Abdul Alim and found the following injuries on his person:
“1. One lacerated wound on the middle of anterior chest wall measuring 1˝ X 1˝ X .5˝.
2. One lacerated wound on the anterior aspect of right side of lower chest measuring 1.5˝ X 1˝ X .5˝ .
Both the injuries were caused by splinters due to bomb blast.
Nature of injuries-Simple.”
 
The P.W. 8 Dr. Md. Nizam Uddin further states in his evidence that on that day, he also examined one Delowar Hossain Patwary and found the following injuries on him:
“1. Multiple splinter injuries on the anterior, posterior and lateral aspect of right leg following bomb blast.
2. Multiple splinter injuries on the anterior, posterior and lateral aspect of left leg following bomb blast.
Nature of injuries-Grievous.”
 
The P.W. 8 Dr. Md. Nizam Uddin next states in his evidence that on that day, he examined one Idris Ali as well and found the following injuries on his person:
“1. Multiple splinter-injuries on the anterior, posterior and lateral aspects of right leg caused by bomb blast.
2. Multiple splinter-injuries on the left foot caused by bomb blast.
Nature of injuries-Grievous.”
 
The P.W. 8 Dr. Md. Nizam Uddin further states in his evidence that on that day, he examined Mr. M.A. Sufian too and found:
“As per history of the victim, shortness of hearing present following bomb blast.
Nature of injury-Grievous.”
 
The P.W. 8 Dr. Md. Nizam Uddin also states in his evidence that the critically injured Mozibul Haque was virtually clinically dead at the time of his examination.
 
In his cross-examination, the P.W. 8 Dr. Md. Nizam Uddin denies a defence suggestion that he did not properly provide medical treatment to the injured Mozibul Haque.
 
The P.W. 9 is Dr. Md. Salauddin Sharif. He deposes that on 03.10.2005, he was on duty as Medical Officer at Lakshmiopur Sadar Hospital and on that day, he held on autopsy on the dead of Mozibul Haque and during autopsy, he found the following injuries thereon:
“1. Injury on left eyeball with loss of eye.
2. Right eye-swollen.
3. Haematoma on the back of head on the left side.”
 
The P.W. 9 Dr. Md. Salauddin Sharif further deposes that  in his opinion, the cause of death of Mozibul Haque was due to haemorrhagic shock because of  splinter injury on account of  bomb blast which was ante-mortem and homicidal in nature.
 
In his cross-examination, the P.W. 9 Dr. Md. Salauddin Sharif denies a defence suggestion that he gave his opinion at his sweet will.
 
The P.W. 10 is Advocate Zahidul Islam. He testifies that on 03.10.2005 at about 12:00 noon,  he was present at the ejlash of the 1st Court of Joint District Judge, Lakshmipur as the engaged Advocate of the defendants of Title Suit No. 793 of 1981  and at that time, he saw that a young man, aged about 21/22 years, threw away a DLR-like book aiming at the Joint District Judge M. A. Sufian and the book hit the table, fell down on the dais and a bomb concealed inside the  book detonated with a bang.
 
The P.W. 10 Advocate Zahidul Islam also deposes that many people including the Joint District Judge were injured as a result of bomb denotation and one of the seriously injured persons Mozibul Haque was taken to Lakshmipur Sadar Hospital, Lakshmipur where the doctor declared him dead.
 
The P.W. 10 Advocate Zahidul Islam further deposes that immediately after the first explosion at the ejlash, there was another bomb explosion on the verandah of the Court and the police personnel and people apprehended the bomb-thrower in front of the Bar Library.
 
The P.W. 10 Advocate Zahidul Islam identifies the bomb-thrower in the dock.
 
In his cross-examination, the P.W. 10 Advocate Zahidul Islam denies a defence suggestion that the identified young man did not hurl any bomb.
 
The P.W. 11 is Advocate Ratan Lal Bhowmik. He states in his evidence that on 03.10.2005  at about 12:00 noon, he was present at the ejlash of Mr. M.A. Sufian, Joint District Judge, 1st Court of Lakshmipur and Advocate Zahidul Islam was on his left and there were some litigants on the left side of Zahidul Islam and one youth standing by the left side of Zahidul Islam threw away a DLR-like  book at  the Judge  M.A. Sufian all of a sudden and it hit the table  and exploded with a bang and the whole ejlash was covered with smoke, sand, broken pieces of glass and torn pieces of paper and the Judge, Bench Assistant and litigants were injured in the bomb explosion and he (P.W. 11) also sustained a minor injury on his hands.
 
The P.W. 11 Advocate Ratan Lal Bhowmik also states in his evidence that as soon as he came out of the ejlash, another bomb was detonated and the police and people caught hold of the bomb-thrower youth and the injured Mozibul Haque succumbed to bomb injuries.
 
The P.W. 11 Advocate Ratan Lal Bhowmik identifies the bomb-thrower in the dock.
 
In his cross-examination, the P.W. 11 Advocate Ratan Lal Bhowmik denies a defence suggestion that the bomb-thrower (Masum) was apprehended on mere suspicion.
 
The P.W. 12 is Advocate Makhan Lal Saha. He claims in his evidence that  on 03.10.2005 at about 12:00 noon,  he was present at the ejlash of the 1st Court of Joint District Judge, Lakshmipur as the engaged Advocate  of the defendants of Title Suit No. 793 of 1981 and the defendant no. 42 Mozibul Haque  was present at the ejlash too  and at that point of time, he saw that a youth threw away a DLR-like book at the Judge and it hit the table, fell down on the rostrum and  exploded with a bang and the Judge escaped narrowly and as a result of the bomb explosion, the Judge, Bench Assistant and  Mozibul Haque were injured and when Mozibul Haque was taken to the hospital, the doctor declared him dead and another bomb was exploded on the verandah of the Court and the police and people hunted down the bomb-thrower youth in front of the building of Lakshmipur District Bar Association.
 
The P.W. 12 Advocate Makhan Lal Saha identifies the bomb- thrower youth in the dock.
 
In his cross-examination, the P.W. 12 Advocate Makhan Lal Saha denies a defence suggestion that the youth Masum did not throw away the bomb.
 
The P.W. 13 is Shahid Ali Rarri. He states in his evidence that on 03.10.2005  at about 12:00 noon, he was present at the ejlash of the 1st Court of  Joint District Judge, Lakshmipur in view of the fact that the Title Suit No. 793 of 1981 was fixed on that day and he was the defendant no. 21 and the deceased Mozibul Haque was the defendant no. 42 of that suit  and a  youth hurled a voluminous book  aiming at the Judge, but it hit the table, fell down on the dais and detonated with a bang and Mozibul Haque and he (P.W. 13) were in close proximity at the ejlash and Mozibul Haque sustained severe injuries as a result  of the bomb explosion and his face was disfigured due to ejaculation of his brain-matter and the Judge, Bench Assistant, Idris and he (P.W. 13) sustained injuries as well and another bomb was exploded on the verandah and the police personnel and people tracked down  the bomb-thrower youth in front of the building of Lakshmipur District Bar Association.
 
The P.W. 13 Shahid Ali Rarri also states in his evidence that he along with the police personnel took away the injured Mozibul Haque to Lakshmipur Sadar Hospital, but he was declared dead and he (P.W. 13) received first-aid treatment and Idris was admitted to the hospital.
 
The P.W. 13 Shahid Ali Rarri also states in his evidence that the police seized the wearing-apparels of Mozibul as per seizure-list (Exhibit-13) and he signed the same as a witness.
 
The P.W. 13 Shahid Ali Rarri next states in his evidence that the police held an inquest on the dead body of Mozibul Haque as per inquest report (Exhibit-14) and he signed it as a witness.
 
The P.W. 13 Shahid Ali Rarri also identifies the bomb-thrower in the dock.
 
In his cross-examination, the P.W. 13 Shahid Ali Rarri admits that he did not see as to who threw away the bomb on the verandah of the Court building.
 
The P.W. 14 is Constable No. 556 Harunur Rashid. As per his evidence, he carried the dead body of Mozibul Haque to the morgue of Lakshmipur Sadar Hospital for autopsy.
 
The P.W. 15 is Delwar Hossain Patwary. He discloses in his evidence that on 03.10.2005,  he came to the Court to know about judgment/order passed in Title Suit No. 488 of 2001 and when he was coming down  along the staircase from the first floor, he heard the sound of a bomb explosion and another bomb was exploded on the verandah of the Court building and he was injured in that bomb explosion  and at one stage, he lost his senses and he had been in the hospital  for treatment for 10 days and subsequently he was treated privately for  1  or two months.
 
In his cross-examination, the P.W. 15 Delwar Hossain Patwary states that the Investigating Officer told him that the bomb-thrower had been apprehended.
 
The P.W. 16 is Idris Ali.  He gives out in his evidence that on 03.10.2005 at about 12:00 noon, he was present at the ejlash of the 1st Court of  Joint District Judge of Lakshmipur and he was the plaintiff of Title Suit No. 793 of 1981 and  that day was fixed for hearing of the suit and the defendant Mozibul Haque and Shahid were also present at the ejlash and then a youth threw  away a voluminous  book aiming at the Judge  and it hit the table, fell down  on the rostrum and exploded  with a bang and many people including the Judge were injured during the bomb explosion and Mozibul Haque was  seriously injured and when he (P.W.16) came  out of the ejlash, another bomb was detonated on the verandah and he was injured in that bomb explosion and at one stage, he lost his senses, regained the same in the evening of the following day and  came to learn that the defendant Mozibul Haque had succumbed to bomb injuries.
 
In his cross-examination, the P.W. 16 Idris Ali reiterates that he was injured in the bomb explosion which took place in the verandah of the Court.
 
The P.W. 17 is Md. Abul Hossain. He testifies that he has been posted as Magistrate, 1st Class, Lakshmipur Collectorate, Lakshmipur and on 13.10.2005, he recorded the confessional statement of the accused Masumur Rahman @ Masum under Section 164 of the Code of Criminal Procedure and it was voluntary and true.
 
In his cross-examination, the P.W. 17 Md. Abul Hossain denies a defence suggestion that the accused Masum did not make his confessional statement voluntarily.
 
The P.W. 18 is Md. Nurullah Nuri.  The sum and substance of his deposition is that on 08.05.2006, he was on duty as Magistrate, 1st Class, Lakshmipur Collectorate, Lakshmipur and on that day, he recorded the confessional statement of an accused, namely, Amzad Ali @ Mohammad Hossain @ Babu under Section 164 of the Code of Criminal Procedure and it appeared to him that the confessional statement was voluntarily made and he also recorded the statement of one witness, namely, Abu Rashed under Section 164 of the said Code.
 
In his cross-examination, the P.W. 18 Md. Nurullah Nuri denies a defence suggestion that the accused Amzad Hossain did not give his confessional statement voluntarily.
 
The P.W. 19 is Abu Rashed. The long and the short of his testimony is that he let out the three rooms of a semi-pucca house of his paternal uncle (a businessman in Chittagong) at Kutir Bagicha to the accused Amzad at a monthly rental of Tk. 1,200/- and 2/3 persons also resided with Amzad and on 03.10.2005, the police brought the accused Masum to the rented premises and then he identified Masum and disclosed that Masum resided with the accused Amzad at the rented premises.
 
The P.W. 20 is Ayesha Begum. The tenor of her evidence is that the deceased Mozibul Haque is her father and on hearing about the news of the occurrence, she went to Lakshmipur Sadar Hospital on 03.10.2005 and saw her father dead.
 
The P.W. 21 is Abu Taher Mizi. According to his evidence, one Bashir Ullah Patwary is the owner of his adjoining house in Chandpur Town and three young persons used to reside there as bharatias and on 04.10.2005, the police along with Masum came to that house and seized some articles therefrom as per seizure-list (Exhibit-18) and he signed it as a witness.
 
The P.W. 22 is Helal Khan. He deposes that an inquest was held on the dead body of Mozibul Haque on 03.10.2005 and he signed the inquest-report (Exhibit-14) as a witness.
 
The P.W. 23 is Md. Manzil Hossain. He states in his evidence that on 03.10.2005, he was on duty at the door of the 1st Court of Joint District Judge, Lakshmipur and at about 12:00 noon, a bomb was exploded at the ejlash of that Court and when the bomb-thrower was on the run, another bomb was exploded on the verandah and he, in co-operation with the people, apprehended the bomb-thrower in front of the building of the Bar Association.
 
The P.W. 23 Md. Manzil Hossain identifies the bomb-thrower (Masum) in the dock.
In his cross-examination, the P.W. 23 Md. Manzil Hossain states:

“১৭ আগষ্ট বোমা হামলার পর কোর্ট বিল্ডিং এ আমরা  প্রতিদিন ডিউটি করতাম”
 
The P.W. 24 is Md. Jahangir Alam, Metropolitan Magistrate, Dhaka.  He is the confession-recording Magistrate of the accused Ataur Rahman @ Sunny.
 
The P.W. 25 is Dr. Samar Kumar Ghosh.  He deposes that he has been a Consultant at Lakshmipur Sadar Hospital and on 03.10.2005 after 12:00 P.M., a Medical Board was constituted for the treatment of the injured in bomb explosion and he treated them as a Member of the Medical Board.
 
The P.W. 26 is Advocate Md. Shahid Hossain. He testifies that on 03.10.2005, he was present at the 1st Court of Joint District Judge, Lakshmipur and at about 12:00 noon, he saw that a young person threw away a DLR-like book aiming at the Judge and it hit the table and exploded with a bang and many people including the Judge were injured as a result of the explosion and the records and furniture of the Court were damaged and one person died.
 
The P.W. 26 Advocate Md. Shahid Hossain next testifies that the bomb-thrower young chap was hunted down by the police and people and it transpired that his name is Masum.
 
The P.W. 26 Advocate Md. Shahid Hossain identifies the bomb-thrower Masum in the dock.
 
In his cross-examination, the P.W. 26 Advocate Shahid Hossain denies a defence suggestion that the real bomb-thrower was not apprehended.
 
The P.W. 27 is Faruk. He is a witness to the inquest-report (Exhibit-14).

The P.W. 28 is Advocate Tasaddek Uddin Ahmed Chowdhury.  He states in his evidence that on 03.10.2005, he was present at the ejlash of the 1st Court of Joint District Judge of Lakshmipur and he was the engaged Advocate on behalf of some of the defendants of Title Suit No. 793 of 1981 and at about 12:00 noon, he saw that a youth hurled a DLR-like book towards the Judge and it  hit the table, fell down on the dais  and exploded with a bang and many people including he himself and the Judge were injured and one of the defendants of the suit, namely, Mozibul Haque died.
 
The P.W. 28 Advocate Tasaddek Uddin Ahmed Chowdhury also states in his evidence that another bomb was exploded on the verandah and the bomb-thrower was apprehended by the police personnel and people in front of the building of the Bar Association.
 
The P.W. 28 Advocate Tasaddek Uddin Ahmed Chowdhury identifies the bomb-thrower in the dock.
 
In his cross-examination, the P.W. 28 Advocate Tasaddek Uddin Ahmed Chowdhury states that the second bomb was detonated on the verandah after one minute of the detonation of the first bomb.
 
The P.W. 29 is Abu Sayed. According to his deposition, his nephew Abu Rashed (P.W. 19) takes care of his tin-shed house at Lakshmipur in his absence and lets out the same and subsequently he came to know from Abu Rashed and others that some JMB activists were bharatias in his house at Kutir Bagicha.
 
The P.W. 30 is Nur Nabi. He deposes that he is the ejlash Peon of the 1st Court of Joint District Judge and on 03.10.2005, he was on duty as such and on that day at about 12:00 noon, a youth threw away a voluminous book aiming at the learned Judge and many people including the Judge were injured and then and there another bomb was exploded on the verandah and the bomb-thrower youth wore a yellow shirt and when he was on the run, the police personnel and people apprehended him.
 
The P.W. 30  Nur Nabi also deposes that he was also injured  and  the ejlash and  records were damaged  and the police came  to the place of occurrence  and seized alamats as per seizure-lists (Exhibits-3, 4 and 5) and he signed the same as a witness.
 
The P.W. 30 Nur Nabi identifies the bomb-thrower youth (Masum) in the dock.
 
In his cross-examination, the P.W. 30 Nur Nabi denies a defence suggestion that the actual bomb-thrower was not apprehended.
 
The P.W. 31 is M.A. Sufian.  He testifies that on 03.10.2005,  he was on duty as Joint District Judge, 1st Court, Lakshmipur and on that day at about 12:00 noon,  he was hearing a petition  in  a civil suit moved by the Senior Advocate  Mr. Md. Nur Nabi and at that time, there were many Advocates and  litigants  at the ejlash and he (P.W. 31) saw a yellow shirt-clad young man seated on his right side with a DLR-like book  in his hands and at one stage, that young man stood up near the table in front of the  Advocates  and posed  himself in such a manner that he would hand over the book to any Advocate; but he did not do so and instantly he hurled the book aiming at him ( P. W. 31)  with a view to killing him and it hit the table on the dais and he (P.W. 31) tilted  and removed the Judicial  Chair to some extent to the left and the book fell down and  a  bomb concealed  therein detonated  with a bang and as a result of the explosion, the ejlash was damaged and many were injured due to  hitting of splinters and the furniture, records and other articles were also damaged.
 
The P.W. 31 M.A. Sufian further testifies that he closed his eyes for a moment and thereafter he opened his eyes and riveted  the same towards the bomb-thrower youth and he saw that the youth was making attempts to flee away quickly and he (P.W. 31) left  the Judicial Chair and followed the bomb-thrower to catch hold of him (bomb-thrower) in co-operation with the police personnel and people,  though  he sustained injuries on his ears and body and he took the risk and chased the bomb-thrower so that the actual bomb-thrower was to be apprehended.
 
The P.W. 31 M.A. Sufian also testifies:

“বোমা নিক্ষেপকারী যুবকটিকে যেহেতু বোমা নিক্ষেপ করার আগে থেকে বেঞ্চে বসা অবসহায় থেকে বোমা নিক্ষেপ করা পর্যন্ত আমি দেখেছি, সেহেতু আমিই তাকে যথার্থভাবে সনাক্ত করিতে পারি।”
 
The P.W. 31 M.A. Sufian further testifies that he saw that the bomb-thrower youth was fleeing away towards the eastern direction  by taking off his shirt and throwing it away quickly and while he was chasing the bomb-thrower, he told others to  apprehend him and then the police and the crowd  chased and caught hold of him in front of the building of Bar Association and he (P.W. 31) himself identified the apprehended bomb-thrower youth at that point of time and then another bomb was exploded on the verandah of the Court building  and one of the injured persons succumbed to  bomb injuries and he (P.W. 31) received medical treatment at the local hospital and thereafter he was referred to IPGMR (now Bangabandhu Sheikh Mujib Medical University) for better treatment and he was treated there accordingly.
 
The P.W. 31 M. A. Sufian also testifies that the Nazir of the Judgeship, namely, Bazlur Rahman was present at the ejlash for the purpose of deposing in connection with a case regarding making over of possession of some land.
 
The P.W. 31 M.A. Sufian identifies the bomb-thrower (Masum) in the dock.
 
In his cross-examination, the P.W. 31 M.A. Sufian denies a defence suggestion that he did not see the bomb-thrower.
 
The P.W. 32 is Inspector Shamsul Islam. According to his deposition, he was the Investigating Officer of Dhaka Kotwali Police Station Case No. 37 dated 08.02.2006 and he produced the accused Ataur Rahman @ Sunny to the Court of the Chief Metropolitan Magistrate, Dhaka for recording of his confessional statement and the Metropolitan Magistrate Jahangir Alam recorded the same.
 
The P.W. 33 is Sub-Inspector Parimal Chandra Das. As per his evidence, he verified the antecedents of the accused Ataur Rahamn  on receipt of an inquiry  slip from Lakshmipur Police Station and submitted a supplementary case diary thereto.
 
The P.W. 34 is Sub-Inspector Jashim Uddin.  The gist of his testimony is that he verified the antecedents of the accused Amzad Ali on receipt of an inquiry slip from Lakshmipur Police Station and submitted a supplementary case diary thereto.
 
The P.W. 35 is Abdur Razzak. The sum and substance of his deposition is that he has a house at Kutir Bagicha in Lakshmipur Town and Abu Sayed (P.W.29) has a tin-shed house near his house and the nephew of Abu Sayed, namely, Abu Rashed (P.W. 19) used to take care of Abu Sayed’s house and three people including Amzad used to reside there as bharatias and Masum used to frequent that house.
 
The P.W. 36 is Sub-Inspector Amir Hossain. According to his deposition, on 03.10.2005,  he held an inquest on the dead body of Mozibul Haque and made a report therefor (Exhibit-14)  and he also seized two check lungis, one blood-stained panjabi and one blood-stained  white Sendo vest of the deceased from the hospital as per seizure-list (Exhibit-20) and he signed the seizure-list as its maker.
 
The P.W. 37 is Tapash Kumar Saha. He deposes that he is the owner of ‘Rupali Studio’ which is situated at College Road, Lakshmipur and on 03.10.2005 at about after 12:00 noon, he received an information that a bomb attack had been launched in the Court premises and many people were injured in the bomb explosion and brought to Lakshmipur Sadar Hospital for treatment and he went there and took video photographs of the injured persons and one of the injured persons succumbed to his injuries.
 
The P.W. 37 Tapash Kumar Saha further deposes that thereafter he came to the Lakshmipur District Judge’s Court, visited the place of occurrence and took some video photographs of that place and the apprehended bomb-thrower.
 
The P.W. 37 Tapash Kumar Saha also deposes that one Kawsar was with him at the time of taking video pictures at the hospital as well as at the District Judge’s Court at Lakshmipur and the police seized a copy of the CD as per seizure-list  (Exhibit-21) and he signed the seizure-list as a witness.
 
The P.W. 38 is Pintu Majumdar.  He testifies that his father is the owner of ‘Sanjit Studio’ at Chawkbazar in Lakshmipur Town and he works along with his father at the studio.
 
The P.W. 38 Pintu Majumdar also testifies that on 03.10.2005 after 12:00 noon, the Lakshmipur Thana Police told him that a bomb attack had been launched at the Judges’ Court Building and advised him to go there with his still camera and accordingly he did so, took some photographs of the place of occurrence Court-room and gave five copies of printed photographs to the police and the police seized them as per seizure-list (Exhibit-21) and he signed the seizure-list as a witness.
 
The P.W. 39 is Constable No. 598 Md. Alamgir Hossain.  He states in his evidence that on 03.10.2005, he was on duty at Lakshmipur Judgeship and on that day at about 12:00 noon, a bomb was detonated in the Court-room downstairs and after the bomb explosion,  a young man wearing a yellow shirt was on the run and then he (P.W. 39) apprehended that young man in co-operation with the crowd and the Joint District Judge M. A. Sufian  identified him and the young man took off his shirt and threw it away so that he could not be identified and the second bomb was exploded  on the verandah  of the Court building  and Constable No. 134  Abdul Alim was injured in the second explosion  and one person died in the first bomb explosion.
 
The P.W. 39 Constable No. 598 Md. Alamgir Hossain identifies the apprehended young man (Masum) in the dock.
 
In his cross-examination, the P.W. 39 Constable No. 598 Md. Alamgir Hossain states that Masum also exploded the bomb on the verandah of the Court building.
 
The P.W. 40 is Ansar No. 7 Anwar Hossain. He asserts in his evidence that on 03.10.2005, he was on duty along with Constable No. 598 Md. Alamgir Hossain and Naik Manzil Hossain on the verandah  of the Judge’s Court of Lakshmipur and on that day at about 12:00 noon, a bomb explosion  took place in the 1st Court of  Joint District Judge, Lakshmipur and another bomb was exploded on the verandah of the Court Building  the moment the  bomb-thrower came out of the Court-room and they (P.W. 40 and others) apprehended the bomb-thrower in co-operation with the crowd while he was on the run by taking off his yellow shirt in front of the building of the District Bar Association and the Joint District Judge identified the apprehended person as bomb-thrower.
 
The P.W. 40 Ansar No.7 Anwar Hossain identifies the bomb- thrower (Masum) in the dock.
 
In his cross-examination, the P.W. 40 Ansar No.7 Anwar  Hossain states that he was at a distance of 4/5 cubits  from the door of the Court-room wherein the first bomb explosion took place.
 
The P.W. 41 is Sub-Inspector Akul Chandra Biswas. He states in his evidence that on 03.10.2005, he was on duty at Lakshmipur Police Station, Lakshmipur and on that day at about 12:00 noon, the Duty Officer told him that bomb explosions had taken place at Lakshmipur Judges’ Court building and directed him to visit the place of occurrence and then he (P.W. 41) along with his force visited the place of occurrence (Court-room), arrested the apprehended Masum and took him in his custody.
 
The P.W. 41 Sub-Inspector Akul Chandra Biswas also states in his evidence that he seized some alamats from the Court verandah and the Court premises by three seizure-lists (Exhibits-3, 4 and 5) and he signed them as seizing officer.
 
The P.W. 41 Sub-Inspector Akul Chandra Biswas identifies the accused (Masum) in the dock.
 
In his cross-examination, the P.W. 41 Sub-Inspector Akul Chandra Biswas admits that there is no mention as to the specific spots of the Court premises in the seizure-lists wherefrom the alamats were seized.
 
The P.W. 42 is Md. Kawsar. The gist of his deposition is that on 03.10.2005 at about 12:00 noon, he rushed to the Lakshmipur Sadar Hospital to see the injured persons in bomb explosions and his Assistant Tapash Saha video-photographed them and thereafter he went to the Lakshmipur District Judge’s Court and video-photographed the place of occurrence (Court-room) and the bomb- thrower(Masum).
 
The P.W. 43 is Assistant Sub-Inspector Md. Abdul Awal. The main thrust of his testimony is that on 14.10.2005, he was on duty at Bandar Police Station, Narayanganj and on receipt of an inquiry slip being no. 4/05 dated 14.10.2005 from the Detective Branch of Lakshmipur District, the Officer-in-Charge of Bandar Police Station endorsed it to him for inquiry and he verified the antecedents of the accused Masum as per inquiry slip.
 
The P.W. 44 is Constable No. 134 Abdul Alim.  He deposes that on 03.10.2005, he was on duty at the ejlash of the 1st Court of  Joint District Judge, Lakshmipur and at about 12:00 noon, he saw that a young man hurled a voluminous book towards the Joint District Judge M.A. Sufian and it hit the table, fell down near the Judicial Chair and a bomb concealed therein exploded with a bang and that young man ran away from the ejlash immediately  after the bomb explosion and then and there another bomb was detonated on the verandah and he along with the police and the crowd chased the young man and at one stage, the young man  doffed his yellow  shirt and threw it away so that he could not be identified  by anybody; but he (P.W. 44 ) and  the Joint District Judge M.A. Sufian identified the bomb-thrower young man and apprehended him in front of the building of the District Bar Association  and the apprehended man disclosed his name as Masum.
 
The P.W. 44 Constable No. 134 Abdul Alim also deposes that he was also injured in the bomb explosion and admitted to Lakshmipur Sadar Hospital for treatment.
 
The P.W. 44 Constable No. 134 Abdul Alim identifies the accused Masum in the dock. In his cross-examination, the P.W. 44 Constable No. 134 Abdul Alim denies a defence suggestion that he did not see the accused Masum hurling the bomb in the Court-room.
 
The P.W. 45 is Sub-Inspector Md. Abdus Salam. He testifies that on 03.10.2005,  he was on duty at Lakshmipur Police Station and having taken up investigation of the case, he visited the place of occurrence, prepared a sketch-map thereof along with a separate index and on 04.10.2005, he seized a copy of the CD as submitted by Tapash and also seized five copies of still photographs of the place of occurrence from one Pintu Majumdar, examined four witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure  and on that day (04.10.2005),  he handed over the case diary to the Detective Branch.
 
In his cross-examination, the P.W. 45 Sub-Inspector Md. Abdus Salam denies a defence suggestion that he did not investigate the case properly.
 
The P.W. 46 is Inspector Belal Uddin Chowdhury. He deposes that on 04.10.2005, he was on duty as Officer-in-Charge of Lakshmipur Detective Branch and on that day, as per the order of the Superintendent of Police, Lakshmipur, he took over the investigation of the case, visited the place of occurrence, examined witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure.
 
The P.W. 46 Inspector Belal Uddin Chowdhury also deposes that at the showing of the accused Masum, he seized six Islamic books, one circuit, two torch-lights, two old Olympic batteries and other articles from his house at Chandpur Town.
 
The P.W. 46 Inspector Belal Uddin Chowdhury further deposes that he sent the alamats of bomb explosion to the explosive expert, procured  copies of the autopsy-report of the deceased Mozibul Haque and the self-inculpatory confessional statement of the accused Masum and having found a prima facie case, he submitted the relevant charge-sheet against the accused Masum.
 
The P.W. 46 Inspector Belal Uddin Chowdhury next deposes that subsequently he submitted supplementary charge-sheet against the accused Amzad and Sunny.
 
In his cross-examination, the P.W. 46 Inspector Belal Uddin Chowdhury denies a defence suggestion that he did not investigate the case in a proper manner.
 
At this juncture, it will not be out of place to mention that the examination report dated 11.10.2005 made by the Chief Explosive Inspector Mr. Nurul Alam has been admitted in evidence under Section 510 of the Code of Criminal Procedure  and marked Exhibit-24 on the side of the prosecution. His opinion as contained in Exhibit-24 runs as follows:

“উপরোক্তর অনুচ্ছেদে বর্ণিত লোহার তৈরী চাক্তি, লোহার সর্র দন্ড ও লোহার ভাঙ্গা টুকরা ইত্যাদি পর্যবেক্ষণে আলামতগুলি দৃশ্যত বিস্ফোরিত বোমার  ধবংসাবশেষ বলিয়া প্রতীয়মান হয়।  পুরো লোহার পাত ছিন্ন-বিচ্ছিন্ন হওয়ার প্রেক্ষিতে প্রতীয়মান হয় যে, সংশ্নিষ্ট বোমা বেশ শক্তিশালী ছিল। তবে, কোন রাসায়নিক পদার্থ না পাওয়ায় বিস্ফোরকটি কোন শ্রেণীর তাহা নির্ণয় করা যায় নাই। তাহাছাড়া কসটেপ, ব্যাটারী, বৈদ্যুতিক তার, সার্কিট ইত্যাদি আলামতগুলি বৈদ্যুতিকভাবে বিস্ফোরণ ঘটানোর প্রক্রিয়ার সহায়ক বৈদ্যুতিক সরনজ্ঞামাদি বলিয়া মনে হয়।”
 
Out of 46(forty-six) prosecution witnesses, the star prosecution witnesses appear to be the  P.W. 1  Md. Bazlur Rahman,  P.W. 3  Advocate Md. Nur Nabi, P.W. 5  Md. Shafiq Ullah,  P.W. 6  Advocate Azgar Hossain Mahmud,  P.W. 7 Advocate Saibal Kanti Saha,  P.W. 10 Advocate Zahidul Islam,  P.W. 11  Advocate Ratan Lal Bhowmik,  P.W. 12 Advocate Makhan Lal Saha,  P.W. 13  Shahid Ali Rarri,  P.W. 15  Delwar Hossain,  P.W. 16 Idris Ali,  P.W. 23  Md. Monzil Hossain,  P.W. 26  Advocate Md. Shahid Hossain,  P.W. 28  Advocate Tasaddek Uddin Ahmed Chowdhury,  P.W. 30 Peon Nur Nabi,  P.W. 31  M. A. Sufian, injured Presiding Officer of the 1st Court of Joint District Judge, Lakshmipur, P.W. 39 Constable  Md. Alamgir Hossain,  P.W. 40  Md. Anwar Hossain and  P.W. 44 Constable Md. Abdul Alim. Excepting the P.W. 3 Advocate Md. Nur Nabi, all the afore-mentioned prosecution witnesses eye-witnessed the hurling of the bomb concealed inside a DLR-like book towards the P.W. 31 M. A. Sufian while he was hearing a petition arising out of Title Suit No. 793 of 1981. It may be pointed out that while the P.W. 3 Md. Nur Nabi was moving the petition at the material time, the bomb was hurled from behind and as such he could not see the face of the bomb- thrower. The eye-witness account of the prosecution witnesses concerned appears to be very vivid, pictorial and graphic. They have given a blow-by-blow account of the occurrence leading to the eventual apprehension of the bomb-thrower Masum. As a matter of fact, the time, place and manner of the occurrence are not disputed by the defence.  The main thrust of the contention of the defence is that Masum did not hurl the bomb at the place of occurrence and his alleged confessional statement is a product of police torture, oppression and maltreatment.
 
Out of the eye-witnesses, the evidence of the P.W. 31 M.A. Sufian appears to be very vital. He himself sustained injuries on his person in the bomb explosion at his ejlash. Ostensively he was the target of the bomb attack of Masum. It is in his evidence that when the accused Masum hurled the bomb aiming at him, he (P.W. 31) tilted his chair to some extent in order to save himself from the bomb attack and the bomb hit the table on the rostrum, fell down and exploded with a bang causing damage to the furniture and records of the Court and resulting in injuries to many persons.
 
It is evident from the relevant testimony on record that the learned Presiding Judge M.A. Sufian (P.W. 31) himself got down from the ejlash and he along with others started chasing the bomb-thrower Masum and at one stage, they succeeded in catching hold of Masum in front of the building of Lakshmipur District Bar Association in co-operation with the police and the crowd.  All the eye-witnesses have stated in chorus that the accused Masum hurled the bomb aiming at the P.W. 31 M.A. Sufian and it detonated with a bang causing damage to the furniture and records of the Court, as already mentioned. It does not stand to reason and logic as to why they will falsely implicate the accused Masum. There is nothing on record to show that the eye-witnesses have   any animus or ill-feeling against the accused Masum; rather the evidence on record unerringly shows that Masum was not known to them prior to the occurrence. So the question of false implication of the accused Masum in the commission of the offence, as we see it, is out of the question.
 
The identity of the accused Masum, it transpires, has been firmly established by the evidence of the star prosecution witnesses. In this regard, the evidence of the P.W. 31 M. A. Sufian and other witnesses concerned is very weighty.  It is in the evidence on record that immediately after the explosion in the Court-room, Masum started running away therefrom by doffing his yellow shirt in order to avoid identification by the people; but the P.W. 31 M. A. Sufian and others could identify him beyond any shadow of doubt and ultimately they tracked him down in collaboration with the police and the crowd. The attempt of the defence to create a sort of smokescreen as regards the identity of the accused Masum falls through.
 
On a critical analysis of the ocular evidence of the star prosecution witnesses, we do not find any omissions, inconsistencies or contradictions on any material aspect concerning the occurrence between their examination-in-chief and cross-examination. This being the panorama, we must say that their rock-like evidence puts the prosecution case on a definite foundation and to discredit or to dislodge them, the reasonable doubt that must be  created in our mind must be based on the evidence on record itself and not on mere inferences, surmises, speculations and conjectures.
 
We have put the direct evidence of the P.W. 1 Md. Bazlur Rahman,  P.W. 3  Advocate Md. Nur Nabi,  P.W. 5  Md. Shafiq Ullah,  P.W. 6  Advocate Azgar Hossain Mahmud,  P.W. 7  Advocate Saibal Kanti Saha,  P.W. 10 Advocate Zahidul Islam,  P.W. 11 Advocate Ratan Lal Bhowmik,  P.W. 12  Advocate Makhan Lal Saha,  P.W. 13  Shahid Ali Rarri,  P.W. 15  Delwar Hossain,  P.W. 16 Idris Ali,  P.W. 23  Md. Monzil Hossain,  P.W. 26  Advocate Md. Shahid Hossain,  P.W. 28  Advocate Tasaddek Uddin Ahmed Chowdhury,  P.W. 30  Peon Nur Nabi,  P.W. 31  M. A. Sufian,  P.W. 39  Md. Alamgir Hossain,  P.W. 40  Md. Anwar Hossain and  P.W. 44  Constable Abdul Alim  to the closest scrutiny as is required by law and found the same to be quite trustworthy, unblemished, unimpeach-able, impeccable and invincible. In their evidence, the substantive part touching upon the factum of the occurrence and its manner, method and sequence have not been shaken, deviated from or rendered doubtful in their cross-examination. The defence has failed to make any headway in this respect.
 
It appears that the evidence of the star prosecution witnesses has a natural flow and the same is not at all laboured in character. They have dourly stood their ground. Their evidence, so to say, is impregnable. That being so, we opine that their ocular evidence excludes the possibility of any inference of fabrication, concoction, tutoring and rehearsal.
 
It is an indisputable fact that one Mozibul Haque was grievously injured in the bomb explosion at the ejlash of the 1st Court of Joint District Judge, Lakshmipur and he succumbed to bomb injuries. The P.W. 9 Dr. Md. Salah Uddin Sharif held an autopsy on the deceased Mozibul Haque. It is the opinion of the P.W. 9 Dr. Md. Salah Uddin Sharif that the death of Mozibul Haque was due to haemorrhagic shock because of  splinter injury on account of bomb  blast which was ante-mortem and homicidal in nature. The evidence of Dr. Md. Salah Uddin Sharif (P.W. 9) seems to be confirmatory of the cause of death of Mozibul Haque. So there is no room for any doubt that Mozibul Haque was grievously injured in the bomb explosion in the Court-room resulting in his death. Besides, the report of the Chief Explosive Inspector dated 11.10.2005 (Exhibit-24) lends support to the bomb explosion that took place in the Court- room. Moreover, the seizure of the alamats (Exhibits-3, 4 and 5) and the attending circumstances of the case bear out the bomb explosion at the place of occurrence. Nor is this all, the sketch-map pinpoints the ejlash of the 1st Court of Joint District Judge, Lakshmipur as the place of bomb explosion.
 
The accused Masum is a confessing accused. His confession dated 13.10.2005 has been admitted in evidence and marked Exhibit-15 on the side of the prosecution. We must ascertain as to whether the judicial confession of Masum is true and voluntary or otherwise. There are certain criteria for assessing the worth of a judicial confession.
 
In the case of Habibur Rahman @ Habib -Vs- The State reported in 8 BLD (HCD) 210, it was observed in paragraph 15:

“15………………………………………….……………………………
Before a Court acts upon a confessional statement, it has to affirmatively satisfy that the statement is voluntary and true. In this regard, the judicial authorities always insist on the meticulous observance of all necessary formalities and precautions provided in Section 164 (3) of the Code of Criminal Procedure with minute particularity so as to ensure that the confession is absolutely free from the slightest tinge or taint of extraneous influence. ‘It is a settled principle of law’ as pointed out by a Division Bench of this Court in the case of Zaheda Bewa and another -Vs- The State reported in 1985 BLD 9 ‘that the requirement of adherence to the provisions of Section 164 (3) of the Code of Criminal Procedure is not a mere matter of form, but of substance. Section 164 (3) is a mandatory provision of law as has been settled by the Privy Council in the case of Nazir Ahmed -Vs- The King Emperor, AIR 1936 P.C 253’. Before recording a confession, a Magistrate is bound to make a real and substantial enquiry as to the voluntariness of the confession. In so doing, he must put questions to the accused with a view to finding out the real object of the confession, whether it is made out of repentance or for any other such good reason or whether it is the result of torture or tutoring by some body or whether it has been caused by any inducement, threat or promise. The questions put by the Magistrate and the answers given by the accused furnish sufficient data for coming to the conclusion whether the statement was voluntary or not.”
 
In the decision in the case of Abul Hossain and others -Vs- The State reported in 13 BLD (HCD) 311, it has been held, inter alia, in paragraph 7 that Sub-Section (3) of Section 164 speaks of the manner as to how the confession of an accused is to be recorded by a Magistrate and this is a mandatory provision and failure to comply therewith shall make the confession invalid and unreliable. It has been further held therein that this provision of law together with the provisions of Section 364 of the Code of Criminal Procedure require to be strictly observed and followed to make the confession voluntary and true in the real sense to be fit for reliance for convicting an accused on his confession.
 
In the case of Nurul Haque and another -Vs- The State reported in 20 DLR (HCD) 780, it was observed:

“Before recording the confession, it must be explained to the accused that he is not bound to make a confession and if he makes a confession, it may be used as evidence against him. It is a mandatory provision of law. No Magistrate should record any confession unless, upon putting questions to the accused, he has reason to believe that the confession was made voluntarily. Any defect arising out of violation of any mandatory provision of law is not curable under Section 533 of the Code of Criminal Procedure.”
 
A reference may be made to the decision reported in 1986 (BLD) 436 (Ali Asgar and another -Vs- The State). In the said decision at page 438, it was held:

“Now let us consider the value of a retracted confession as against the maker. On consideration of evidence on record, if it is found that a confession is voluntary and true, conviction of the maker himself can solely be based upon the same, no matter whether it is retracted or not. In the case of the State -Vs- Minbun alias Gul Hassan reported in 16 DLR (Supreme Court) page 598, their Lordships of the Supreme Court held as follows:

‘As against the maker himself, his confession, judicial or extra-judicial, whether retracted, or not retracted, can in law validly form the sole basis of his conviction. So we are also of the opinion that a confession, if proved true and voluntary, can be the sole basis for conviction of the maker of the confession.”
 
In the case of the State -Vs- Punardhar Joydhar alias Kudu and Shefali reported in 31 DLR (HCD) 312, it has been held that the accused first made a confessional statement under Section 164 of the Code of Criminal Procedure that he committed that murder, although subsequently he retracted his confessional statement before the Court and the confession being found voluntary and without any threat, coercion or inducement, conviction of the accused based on his confession, though subsequently retracted by him, is valid in law.
 
The principle that has been enunciated in the case of Hazrat Ali and another -Vs- The State reported in 1990 BLD (HCD) 38 is that once a confession has been found to be true and voluntary, conviction can be based solely on the confession, even if it is retracted.
 
The ‘ratio decidendi’ of the case of Bakul Chandra Sarkar -Vs- The State reported in 45 DLR (HCD) 260 is that if a confession recorded under Section 164 of the Code of Criminal Procedure is true and voluntary, the same alone is sufficient for convicting the confessing accused and retraction of confession is immaterial, once it is found to be true and voluntary.
 
Keeping the aforesaid principles in view, let us address and consider the inculpatory confessional statement of the condemned-prisoner Masum (Exhibit-15).
 
The relevant portion of Exhibit-15 is to the following effect:

“গত ০১.১০.২০০৫ তারিখ ও ০২.১০.২০০৫  তারিখ আমি লক্ষিপুর জজ কোর্ট গিয়ে কোর্টের এজলাসগুলো দেখে আসি।  ঐ দুদিন সকাল ১০.০০ টায় কোর্টগুলো দেখে আনুমানিক ১ ঘটিকা থাকার পর চলে যাই। ০২.১০.২০০৫ তারিখ রাতে কামরুল সকলকে নিয়ে বসে আমাকে বলে তোমাকে একটা অপারেশনে যেতে হবে। রাতে হোসেন ওরফে বাবু, হাজ্ঞালা, জুয়েল তাদের বেডিংপত্র বেঁধে ফেলে ও ৩/১০/২০০৫ তারিখ সকালে নামাজ পড়ে বেডিং সহ চলে যায়। কামরুল ও তাদের সাথে রুম হতে চলে যায় এবং আধা ঘন্টা পর ২ টি ব্যাগ হাতে কামরুল ঘরে প্রবেশ করে বলে ২ টি ব্যাগে ২ টি বোমা যা বই এর মত দেখতে। কামরুল আমাকে বলে যে, বোমার ১ টি লাল ফিতা আছে। উক্ত ফিতা টান দিয়ে নিক্ষেপ করার পর বোমাটি বিস্ফোরিত হবে। সে আমাকে আরো বলে যে, দৌড়ে পালানোর সময় কেহ ধাওয়া করলে তোমার পরনের শার্ট ও জুতা খুলে দোঁড় দিবে। গত ৩/১০/২০০৫ তারিখ সকাল ৮.০০ টার সময় ১ টি বইয়ের মতো বোমা আমার হাতে কামরুল দেয় এবং বোমাটি ১২.০০ টার সময় জজ সাহেবের টেবিলের মধ্যে ফিতা টেনে ছুঁড়ে মারার জন্য বলে। আমি বোমা সহ পরিকল্পনা অনুযায়ী সকাল ৮.১৫ মিনিটের সময় আদালতের সম্মুখের রাস্তার পার্শ্বে অবস্থান করতে থাকি। অন্য বোমাটি কামরুল কোথায় নিয়ে গেছে তা জানিনা। আমার ঘড়িতে ১২ টা বাজার ১৫ মিনিট পূর্বে আমি জজ কোর্টে বিচার চলাকালে পিছনের বেঞ্চে গিয়ে বসি। ঐ বেঞ্চেই আমার পাশে একজন বৃদ্ধ লোক বসা ছিল। বেলা ১২.০০ টায় বোমার সাথে সংযুক্তর লাল ফিতাটি টান দিয়ে বই এর মতো দেখতে বোমাটি জজ সাহেব যে টেবিলে বসে বিচার কার্যএ্রম চালায় ঐ টেবিলের দিকে বোমাটি নিক্ষেপ করি। বোমাটি নিক্ষেপ করার পর পরই দরজা দিয়ে সহান হতে দৌড় দিয়ে পালানোর চেষ্টা করলে জনতা ও পুলিশ বোমা নিক্ষেপকারী হিসেবে আমাকে চিহ্রিত করে আমাকে ধাওয়া করলে আমি আমার পরনের হলুদ/ টিয়া রংয়ের ফুলহাতা শার্ট খুলে ফেলি এবং পায়ের সেন্ডেল খুলে দৌঁড় দিলে পুলিশ ও জনতা আমাকে ধরে ফেলে। সে সময় আমি আরেকটি বোমা বিস্ফোরনের শব্দ শুনতে পাই। বোমা বিস্ফোরনের সময় আমাকে কামরুল বলেছিল যে, তুই ধরা পড়লে তোকে রক্ষা করার জন্য আরেকজন আছে। আমার পালানোর সুবিধার জন্য ২য় বোমাটি ফাটানো হয়েছিল। পুলিশ আমাকে গ্রেপ্তারের পর জানতে  পারি যে, বোমার আঘাতে একজন বৃদ্ধ লোক হাসপাতালে চিকিৎসাধীন অবসহায় মারা গেছে ও অনেকে গুরুতরভাবে আহত হয়েছে। আল্লাহর আইন ছাড়া মানুষের তৈরী প্রচলিত আইন অনুযায়ী যারা বিচার কার্যক্রম করে তারা কাফের। বিচারককে শেষ করার উদ্দেশ্যেই তার উপর বোমা নিক্ষেপ করেছিলাম।”

It transpires from the confessional statement (Exbibit-15) that the learned confession recording Magistrate Mr. Md. Abul Hossain (P.W. 17) meticulously complied with all the mandatory provisions of Section 164(3) of the Code of Criminal Procedure. It also appears from Exhibit-15 that he did not notice any marks of injury on the person of Masum. Moreover, no suggestion was put either to the P.W. 17 Md. Abul Hossain or to the P.W. 46 Inspector Belal Uddin Chowhdury (Investigating Officer) in their cross-examination on the side of the defence that Exibit-15 is a product of police torture or oppression or maltreatment. Over and above, it is the admitted position that the accused Masum did not file any application in the Court for retraction of his confessional statement at any point of time. It does not also appear from the testimony of the P.W. 17 Mr. Md. Abul Hossain that Masum complained of any police torture or oppression to him prior to recording of his confession. On top of that, the P.W. 17 Md. Abul Hossain appended a certificate to Exhibit-15 that it appeared to him that the accused Masum made the confession voluntarily and spontaneously. Against this backdrop, we have no option but to hold that the confessional statement of the condemned-appellant Masum (Exhibit-15) is voluntary.   
 
Broadly speaking, the judicial confession of the condemned-appellant Masum stands corroborated by the evidence of the eye-witnesses to the occurrence. In other words, the judicial confession of Masum has been corroborated by the ocular evidence on record in material particulars. This being the position, we feel no hesitation in holding that the confessional statement of Masum is true as well.
 
The defence version of the case that the accused Masum is innocent and has been falsely implicated in the case and his alleged confessional statement is the product of police torture, oppression and maltreatment does not receive any indication or support from the evidence and materials on record and attending circumstances of the case. So the defence version of the case is a downright falsehood. It is like-‘A drowning man catches at a straw’.
 
From the discussions made above, it has been conclusively proved that the accused Masum detonated the bomb at the ejlash of the 1st Court of Joint District Judge, Lakshmipur at the material time. It appears from the tone and tenor of his confessional statement that they (Masum and other JMB activists) wanted to establish the Rule of Allah by implementing Islamic Law. However, we have already found that as a result of the bomb explosion, one Mozibul Haque died and many people including the Presiding Judge M.A. Sufian (P.W.31) were injured.
 
In this perspective, a pertinent question arises: does Islam support killing of innocent people by means of bomb explosion or other means of violence to establish the Rule of Allah through implementation of Islamic Law in this country? The answer is obviously in the negative. In this context, we feel tempted to advert to the decision in the case of Iftekhar Hasan (Md) @ Al Mamun and others -Vs- ..The State reported in 59 DLR(AD)36. In that decision, it was observed in paragraph 83:

“83. Islam is a religion of peace. It is derived from the word “Salam” meaning peace. Using the holy name of Islam, the petitioners have engaged in a wild mad struggle jeopardizing the law and order of the country resulting in killing of innocent people as has been done in the present case of killing the two Judges. Does Islam permit killing of such innocent persons? Are those ill-fated Judges responsible for not implementing Islamic law in this country?  Is it the job of the Judges to legislate Islamic law in Bangladesh? Is there even any allegation against them of murdering any other persons or any adversary or being themselves Murtad? Islam does not encourage use of force in the matter of religion. The way the petitioners resorted to outrageous atrocities in the name of Islam killing innocent persons has been prohibited clearly in Islam. The Quran says “……….. whosoever kills a human being for other than manslaughter or corruption in the earth, it shall be as if he had killed all mankind, and whosoever saveth the life of one, it shall be as if he had saved the life of all mankind……” Sura 5:Al Maidah: 32.”
 
Reverting to the case in hand, although the Joint District Judge M.A. Sufian (P.W. 31) was the target of the unlawful or malicious bomb attack, he escaped death narrowly and one of the litigants, namely, Mozibul Haque having been grievously injured died owing to the bomb explosion.  
 
From the discussions made above and in view of the facts and circumstances of the case, it is crystal clear that the accused Masum unlawfully or maliciously caused by an explosive substance an explosion of a nature likely to endanger life or to cause serious injury to person or property and because of the bomb explosion, many people were injured and one Mozibul Haque sustained a grievous splinter injury on his person resulting in his death. This being the position, it leaves no room for doubt that the accused Masum committed the offence punishable under Section 3 of the Explosive Substances Act.
 
Section 26 of the General Clauses Act contemplates  that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. But the offence punishable under Section 302 of the Penal Code and the offence punishable under Section 3 of the Explosive Substances Act are not one and the same; rather they are distinct and separate offences. As they are distinct and separate offences, Mr. Syed Mizanur Rahman can not invoke the aid of Section 26 of the General Clauses Act.
 
At this juncture, let us address the submission of Mr. Junayed Ahmed Chowdhury that the non-taking of cognizance of the offence against the accused Amzad on the basis of the supplementary charge-sheet by the learned Special Tribunal Judge under Section 27 of the Special Powers Act has vitiated the trial of the case in so far as he is concerned. It may be recalled that the accused Amzad is also a confessing accused. His confession is inculpatory in nature.  According to the purport of his confession, he abetted the commission of the offence.
 
However, in the decision in the case of The Crown -Vs- Pirdhan Rautamall & Co. represented by Matilal Mulgulia reported in 2 DLR 304 relied on by Mr. Junayed Ahmed Chowdhury, it was held:

“It is difficult to comprehend under what provision of law the learned Sub-Divisional Officer believed himself  to be acting when after calling on the petitioner to show cause why he should not be prosecuted and on his showing cause, convicted him without any further ado, without  taking cognizance of the offence and without taking any action under  Chapter XVII or  Chapter XX  of the Code of Criminal Procedure, without respecting the provisions of Section 190(C), without recording any evidence and without following any recognized procedure for trial. Clearly the conviction can not possibly be maintained and must be set aside.”
 
In the instant case, it is undisputed that no cognizance was taken of the offence against the accused Amzad by the learned Special Tribunal Judge under Section 27 of the Special Powers Act. In the aforesaid decision, the non-taking of cognizance of the offence against the offender, amongst others, was one of the reasons for reversal of his conviction.
 
Now a billion-dollar question arises: what legal consequences will ensue for not taking cognizance of the offence against the accused Amzad on the basis of the supplementary charge-sheet no. 86 dated 14.05.2006?  Taking cognizance of an offence means taking judicial notice of the prima facie commission of an offence against a particular accused. In our view, unless cognizance is taken of the offence against him, his subsequent trial, if any, can not be sustainable in law inasmuch as the learned Tribunal Judge did not prima facie hold that there was commission of any offence by him. In such a situation, the trial of the accused shall stand vitiated.
 
In this case, admittedly no cognizance was taken of the offence against the accused Amzad on the basis of the supplementary charge-sheet and that meant that there was no prima facie commission of the offence by him. Considered from this standpoint, the trial of the accused Amzad by the Tribunal below is, no doubt, a mistrial. We have already noticed that the non-taking of cognizance of the offence against the offender was one of the reasons for reversal of his conviction in the case of the Crown -Vs- Pirdhan Rautamall & Co. represented by Matilal Mulgulia reported in 2 DLR 304. In the present case, the non-taking of cognizance of the offence against the accused Amzad by the concerned Tribunal Judge is admitted. Such being the state of affairs, we opine that the non-taking of cognizance of the offence against the accused Amzad on the basis of the supplementary charge-sheet by the concerned Tribunal Judge has vitiated the trial of the case so far as it relates to him. This illegality is not curable by Section 537 of the Code of Criminal Procedure. So we can not maintain the order of conviction and sentence passed against the accused Amzad. Consequently, the accused Amzad is entitled to acquittal.
 
We may now deal with the question of commutation of the death sentence of Masum to imprisonment for life as strenuously urged Mr. Syed Mizanur Rahman. According to the learned Deputy Attorney-General Mr. Md. Khurshedul Alam, the accused Masum committed the crime against the State, social structure and the Judiciary and in the process of commission of the crime, many persons including the Joint District Judge M.A. Sufian (P.W. 31) were injured and one Mozibul Haque died. As a matter of fact, the commutation of death sentence of a condemned person to life-term imprisonment depends upon the facts and circumstances of each case. No strait-jacket formula can be laid down in this respect. Mr. Syed Mizanur Rahamn has relied upon a good number of decisions mainly of the High Court Division in respect of commutation of the death sentence of Masum to life-term imprisonment. The learned Deputy Attorney-General Mr. Md. Khurshedul Alam has also relied upon some decisions of the Appellate Division for upholding the death penalty imposed upon him.
 
It is axiomatic that in the criminal justice delivery system, sentencing is the cutting-edge of the judicial process.
 
In the case of Abul Khair -Vs- The State reported in 44 DLR (AD) 225, it was observed in paragraph 17:

“17. Delay by itself in the execution of sentence of death is by no means an extenuating circumstance for commuting the sentence of death to imprisonment for life. There must be other circumstances of a compelling nature which together with delay will merit such commutation. We find no compelling extenuating circumstance in this case and therefore find no ground whatsoever to interfere.” 
 
In the case of the State -Vs- Rokeya Begum alias Rokaya Begum and another (condemned-prisoners) reported in 13 BLT (HCD) 377, it was held in paragraph 51:

“51. Sentencing discretion on the part of a Judge is the most difficult task to perform. It is, also, not possible to lay down any cut and dry formula for imposition of sentence, but the object of sentence should be to see that crime does not go unpunished and the victim of crime as, also, the society has the satisfaction that justice has been done. It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and cruel act perpetrated by the offenders. To give lesser punishment to the condemned prisoners who stand convicted in a shocking and revolting crime would render the Justicing System of the country suspect. Under sympathy to impose inadequate sentence would do more harm to Justice System to undermine public confidence in the efficacy of law.”
 
Undeniably, the condemned-prisoner Masum has been in the condemned cell for over 6(six) years. Long pendency of the Death Reference per se is not a ground for commutation of the death sentence of Masum to life-term imprisonment. There must be other circumstances of a compelling nature as observed by the Appellate Division in the decision reported in 44 DLR (AD) 225 (supra).
 
It may be recalled that Mr. Syed Mizanur Rahman has urged for commutation of the death sentence of Masum to life-term imprisonment in view of his tender age and long pendency of the Death Reference in the High Court Division. By the way, at the time of the commission of the offence, Masum was about 21/22 years of age.
 
In the decision in the case of Abdul Khaleque Mir -Vs- The State reported in 2BLT(AD) 172 relied upon by the learned Deputy Attorney-General Mr. Md. Khurshedul Alam, it was held in paragraph 15:

“15. The Government may consider the destitute nature of the family consisting of several children and a wife who will be left without any moorings if the sentence of death passed against the condemned-prisoner is maintained and executed. There will be both a real and psychological deprivation and traumatic experience to the large number of children, who are innocent, if their father, namely, the accused-petitioner is to suffer the sentence of death. The misery of a poor family is likely to become more miserable. These considerations which are in the nature of human concern can not be legally a matter for a Court of law for imposing a lesser sentence under Section 302 of the Penal Code once the offence is proved; but the Government and/or the President may always exercise their power under the law for commuting the sentence of death on considerations as referred to above or on any other legitimate consideration.”
 
In the case of Islamuddin (Md) @ Din Islam  -Vs- The State reported in 13 BLC (AD) 81 referred to by the learned Deputy Attorney-General Mr. Md. Khurshedul Alam, it was held in paragraph 9:

“9. It further appears that the High Court Division also considered the argument of the learned Counsel for the condemned- prisoner  that the condemned-prisoner being a young man of 33 years, the ends of justice would be met if the sentence of imprisonment for life was awarded to him instead of death  sentence. But the High Court Division opined that in the facts and circumstances of the case and the heinous nature of offence, the condemned-prisoner deserved punishment as has been imposed upon him by the trial Court.”

Ultimately the Appellate Division concurred with the view of the High Court Division and maintained the death sentence imposed upon the condemned-prisoner by the trial Court in that case.
 
While commuting the sentence of death to imprisonment for life in the case of Chowla  -Vs- .The  State of Haryana reported in AIR 1974 (SC) 1039, it was spelt out as under:

“Perhaps none of the above circumstances, taken singly and judged rigidly by the old draconian standards would be sufficient to justify the imposition of the lesser penalty nor are these circumstances adequate enough to palliate the offence of murder. But in their totality, they tilt the judicial scales in favour of life rather than putting it out.”
 
We have gone through the decisions referred to by Mr. Syed Mizanur Rahman carefully. It seems that the High Court Division commuted the death sentences to life-term imprisonments in view of tender age of the condemned-prisoners and long pendency of the Death References; but this view of the High Court Division is not in keeping with that of the Appellate Division, as noticed above.
 
In the decision in the case of Madan Gopal Kakkad -Vs- Naval Dubey and another reported in 3 SCC (1992) 204,  paragraph 58 runs as follows:

“58. We feel that Judges who bear the Sword of Justice should not hesitate to use that Sword with the utmost severity, to the full and to the end, if the gravity of the offences so demand.” 
 
Coming back to the instant case, the sentence should commensurate with the gravity of the offence. It goes without saying that the criminal act of the condemned-appellant Masum is fiendish, diabolical, heinous and shocking to our conscience. In fact, we do not find any mitigating or extenuating circumstance of a compelling nature for the purpose of commutation of his death sentence; rather all the circumstances are aggravating. In such a landscape, we should not hesitate to use the Sword of Justice with the utmost severity, to the full and to the end. As it is not only a crime against a particular individual but also a crime against the judicial system as a whole as is evident from the confessional statement of Masum (Exhibit-15) and as rightly pointed out by the learned Deputy Attorney-General Mr. Md. Khurshedul Alam, the extreme penalty of death, to our mind, will be an appropriate sentence for the commission of the offence by the accused Masum. So we are unable to accept the submission or prayer of Mr. Syed Mizanur Rahman in respect of commutation of the death sentence of the appellant Masum to imprisonment for life. Accordingly that submission or prayer stands negatived.
 
It transpires from the impugned judgment that the accused Masum was also awarded a fine of Tk. 1,00,000/- along with the death sentence. It should be borne in mind that imposition of fine on a death sentence awardee is improper or inapposite, though not illegal. So the sentence of fine imposed upon him is set aside.
 
The other order of conviction and sentence recorded against the condemned-prisoner Masum under Section 4(b) of the Explosive Substances Act is, no doubt, a superfluity and that being so, the same is knocked down.
 
From the foregoing discussions, we do not find any merit in Criminal Appeal No. 902 of 2007 preferred by the condemned-prisoner Masum and as such it is dismissed with the modification of the impugned judgment made in the body of this judgment. Consequently, we accept the Death Reference in part so far as it relates to the condemned-prisoner Masum, confirm the death sentence imposed upon him and affirm the impugned order of conviction and sentence recorded against him under Section 3 of the Explosive Substances Act, 1908.
 
The Criminal Appeal No. 7820 of 2012 is allowed and the Death Reference is rejected so far as it relates to the condemned-appellant Amzad Ali. The impugned order of conviction and sentence passed against the appellant Amzad Ali under Sections 3/6 and 4(b)/6 of the Explosive Substances Act, 1908 is set aside and he is acquitted of the charge levelled against him.
 
Let the accused-appellant Amzad Ali @ Mohammad Hossain @ Babu be set at liberty at once, if not wanted in connection with any other case.
 
Let the records of the Tribunal below along with a copy of this judgment be sent down at once.
 
Ed.